Citation NR: 9733930
Decision Date: 10/03/97 Archive Date: 10/09/97
DOCKET NO. 93-28 676 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to educational assistance benefits under the
Pacheco Order.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Marcy L. Rogoff, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1967 to
January 1969.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal of a September 1992 rating determination by
the Department of Veterans Affairs (VA) Regional Office (RO).
The Board, in April 1996, remanded the case to the RO for
additional development.
The Board notes that the veteran’s claims of entitlement to
service connection for temporomandibular joint (TMJ)
syndrome, fungus infection of the feet, and entitlement to an
increased evaluation for the residuals of a left shoulder
disability currently evaluated as 20 percent disabling were
remanded by the Board to the RO in September 1993 as the
result of a decision by the United States Court of Veterans’
Appeals (Court) in February 1993. Subsequent to that remand,
the veteran’s claims for service connection for TMJ and a
fungus infection of the feet were granted by the RO. This
was a complete grant of the benefits sought on appeal as to
these matters. These issues are not currently before the
Board for appellate review.
The issue of entitlement to an increased evaluation for
residuals of a left shoulder disability is addressed in a
separate Board decision.
The veteran bases his current claim for Chapter 34
educational assistance benefits on the consent order entered
in Pacheco v Department of Veterans Affairs, No. C83-3098
(N.D. Ohio E.D. 1991) (hereinafter Pacheco Order or Order).
The Board's review of the veteran's claim is subject to the
Pacheco Order and both the original decision by the RO and
the Board's review are limited by paragraph 6 of the Order.
In pertinent part, that paragraph provides that a claim based
on the Pacheco Order will be exclusively governed by the
laws, regulations and policies operative on December 31,
1984, (the date the “delimiting date extension provisions”
expired), "including, but not limited to the finality of VA
decisions (38 U.S.C.A. § 211(a))." Pacheco Order, slip op.
at 9.
Further, the Order goes on to express the agreement of the
parties that "[n]o decision on a claim made under this Order
shall be brought to the Court of Veterans Appeals for
review." Pacheco Order, slip op. at 9-10. Consequently,
while the Board is mindful that the Court is empowered to
review Board decisions, 38 U.S.C.A.
§ 7252 (West 1991 & Supp. 1997), and that the Board is
required to explain in a notice of decision provided to the
claimant the procedures for obtaining review of the Board
decisions, 38 U.S.C.A. § 5104, the veteran in this case does
not have the right to seek such review under the express
terms of the Pacheco Order.
The Board will advise the veteran of the procedures for
obtaining review of the Board’s decision in this matter by
the Court as required by law. However, the Board now also
advises the veteran of the settlement terms embodied in the
Pacheco Order that no such review will be sought.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that he is entitled to
retroactive Chapter 34 educational assistance benefits under
the Pacheco Order for the program of education pursued at
Glendale University College and Los Angeles Valley College
between 1982 and 1984. He maintains that the course work
completed during that time frame was predominantly vocational
in nature and was intended to lead to a trade and a degree in
the area of political science. It has been argued by the
veteran's representative, in reviewing the veteran's course
work, that his degree program was for purposes of a
vocational objective, therefore meeting the requirements of
the Pacheco Order.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the program pursued by the
veteran was not a course in an approved Associate degree
program predominantly vocational in content.
FINDINGS OF FACT
1. The veteran served on active duty from January 1967 to
January 1969.
2. The veteran's delimiting date for use of his Chapter 34
benefits was January 1979. He had remaining Chapter 34
entitlement on that date.
3. The veteran attended Glendale University College and Los
Angeles Valley College between January 1982 and December
1984, enrolling in courses which applied toward an Associate
in Arts Political Science degree.
4. The courses taken by the veteran during this period were
not predominantly vocational in content.
CONCLUSION OF LAW
The courses the veteran completed at Glendale University
College and Los Angeles Valley College were not courses in an
improved Associate degree program predominantly vocational in
content. 38 U.S.C. § 16662(a)(3) (added by Pub. L. No. 97-
72, § 201(a), 95 Stat. 1054 (1981)); amended by Pub. L. No.
97-306, § 206, 96 Stat. 1435 (1982); interpreted by Pub. L.
No. 98-77, § 18(a), 97 Stat. 452 (1983), appearing at 29
U.S.C. § 1721 note, § 18(a), Pub. L. No. 98-77, § 18(a)
(1983); 38 C.F.R. §§ 21.1044(d), 21.4151(b), 2152(b) (1983).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran served on active duty from January 1967 to
January 1969. Pursuant to 38 U.S.C.A. § 3462(a), no
educational assistance under Chapter 34, title 38, United
States Code, could be afforded the veteran later than January
1979, 10 years after separation from service. However, a
veteran with unused Chapter 34 entitlement could use those
benefits to pursue a program of apprenticeship or other on-
job training, a course with an approved vocational objective,
or a program of secondary education if the veteran did not
have a diploma or an equivalency certificate. 38 U.S.C.A. §
3462(a)(3)(A); 38 C.F.R. § 21.1044. Educational assistance
was available for one of those purposes unless the VA
determined that the veteran did not need the program in order
to obtain a reasonably stable employment situation. 38
U.S.C.A. § 3462(a)(3)(C)(i). In any event, educational
assistance under Chapter 34 for these purposes could not be
provided after December 31, 1984. 38 U.S.C.A. §
3462(a)(3)(D). For purposes of background, the Board notes
that prior VA policy was to deny such a delimiting date
extension if the course was part of an Associate degree
program. This policy was challenged in the Pacheco case and
as a result certain Vietnam Era veterans who had been denied
an extension of the delimiting date for the pursuit of
certain approved Associate degree courses, during the period
January 1982 to December 1984, were provided a remedy.
Turning to the record, the Board notes that the veteran
reported that he had attended classes at Los Angeles Valley
College in 1982. A transcript from the College revealed that
the veteran was enrolled in Legal Aspects of Evidence, Civil
Rights and the Law, and Introduction to Philosophy. The
transcript indicated that the veteran had withdrawn from
these classes. In the Fall of 1982, the veteran was enrolled
in Civil Rights and the Law, Government of the United States,
and Introduction to Sociology. The veteran also withdrew
from these course. No work was completed during the Spring
of 1983. The transcript continued with course work beginning
in 1990.
The veteran also attended courses at Glendale University
College of Law from 1983 to 1984. A March 1983 letter
indicated that the veteran had been accepted into the Special
Criminal Law Program of the College of Law. The RO notified
the veteran that he was not entitled to benefits pursuant to
the Pacheco Order as he was not pursuing an Associate degree
at Glendale University College of Law.
The RO notified the veteran in October 1992 that the
transcript he had provided from Los Angeles Valley College
revealed that he had withdrawn from all of his credit hour
courses in 1982. He was told that educational benefits were
not payable for courses from which he withdrew and for which
he received non-punitive grades unless the circumstances for
the withdrawal were beyond his control. The RO requested
that the veteran provide additional information, including
verification of the reason for his withdrawal from enrolled
courses and a statement verifying his degree objective.
In a December 1992 letter, the veteran responded that his
vocational goal was to enter the field of law. He stated
that during his course work he was employed on a part time
basis, and took time from work for classes. He stated that
he withdrew from his courses because of his post-traumatic
stress disorder (PTSD).
A January 1993 Report of Contact noted that Glendale
University College of Law did not offer an Associate degree
program in 1983, but only offered a “B.S.L. or a J.D.”
In an April 1993 statement, the veteran indicated that he was
admitted to the Glendale University College of Law without
the benefit of an Associate degree. But due to stress and
anxiety, he was unable to continue. He stated that law
school was predominantly a vocational school. The veteran
also stated that he was to receive his Associate in Arts
degree from Los Angeles Valley College in the next two
months, but that he had withdrawn several times due to his
PTSD. Of record is a copy of an Associate in Arts Political
Science degree awarded to the veteran by the Los Angeles
Valley College in 1993.
A personal hearing was held in December 1993. The veteran
testified that he was originally enrolled at the Los Angeles
Valley College in an effort to obtain his Associate’s Degree.
He enrolled in legal courses so that he could get a law
degree or a job as a paralegal. He withdrew from classes due
to severe anxiety problems. He also testified that he
enrolled in Glendale University College of Law in 1983 and
had hoped to transfer earned credits to Los Angeles Valley
College to apply towards his Associate degree. Even though
Glendale did not offer an Associate degree program, he stated
that he believed all of his classes would work towards his
Associate degree from Los Angeles Valley College.
Subsequent to the April 1996 remand, the RO requested
information about the courses taken by the veteran at Los
Angeles Valley College and asked whether any of the courses
taken by the veteran at Glendale University were accepted as
credits toward his Associate in Arts degree. Similar
information was requested from the veteran.
The veteran responded that he withdrew from his courses due
to stress and anxiety, but that a political science degree
was always his goal. Los Angeles Valley College indicated
that in April and October 1982 the veteran dropped from 6-3
units after the drop/add period and that nonpunitive grades
were assigned for those courses. The College also indicated
that none of the veteran’s Glendale University credits were
accepted toward his Associate in Arts degree.
A July 1996 letter from Los Angeles Valley College stated
that the core courses required for the Political Science
major consisted of several political science courses, a law
course, plus one of the following: Political Science 9,
History, Chicano Studies, or African American Studies. The
veteran needed 60 units to graduate. The College indicated
that the major did meet the definition of a vocational major,
since the required individual courses were not vocational in
content.
A Report of Contact, dated in July 1996, indicated that at
least 33 credit hours, which were needed for the Associate in
Arts Political Science Degree, were not considered
vocational. An additional notation indicated that finding 27
credit hours to be vocational was generous considering the
curriculum requirements.
The Board notes that the consent order in Pacheco applied to
Vietnam Era veterans who pursued approved associate degree
programs predominantly vocational in content between January
1, 1982, and December 31, 1984, and defined the phrase
"approved associate degree program" as an Associate degree
program which is approved by a State approving agency or VA
and which is predominately vocational in content. Degrees
awarded in Associate degree programs may include degrees such
as Associate in Arts, Associate in Applied Science and
Associate in Science degrees. Pacheco, slip op. at 3.
While it is indicated by the veteran and his representative
that his goal was a vocation in the field of law and that his
courses were all to achieve that goal, the record evidences
that the veteran was not in an Associate degree program
predominantly vocational in content. The fact that the
courses might be applied to an Associate degree does not make
them "pursued...in an approved associate degree program
predominantly vocational in content." It was not shown that
the courses listed on his transcript in 1982, noted above,
represented a program that was predominantly vocational in
content. Under the applicable regulation, a program is
predominantly vocational in content if more than half of the
courses are vocational in nature. 38 C.F.R. § 21.1044(d).
Vocational training is generally considered to be training
that consists of practical work and instruction in a
technical subject which will prepare the student for service
in a nonprofessional or semiprofessional occupation. A
vocational course will often require laboratory or shop time
as part of or supplementary to the classroom portion of the
course. See DVB Circular 20-83-1 (November 21, 1983).
Although the veteran has argued that the courses that he took
were vocational in nature, we find that his transcript
indicated that he was not enrolled in a program where more
than one-half the unit subjects he was enrolled in were
predominantly vocational in content, in light of the
provisions of 38 C.F.R. § 21.1044(d). The veteran was
enrolled in courses to obtain an Associate in Arts Political
Science degree, which is not considered a vocational degree,
and more than half the courses were considered nonvocational.
The fact that he was pursuing a career in law, even if it
could be shown that such employment resulted from his course
work, has no bearing on this matter. Finally, with regard to
the veteran's argument that the courses he took at Glendale
University College of Law in 1983 and 1984 should be
considered vocational in content as they were to be applied
to his associates degree, the Board observes that Los Angeles
Valley College indicated that none of these credits
transferred to his associates degree. Additionally, the
transcript from Los Angeles Valley College indicates that the
veteran withdrew from his courses in 1982. Although the
veteran has explained that he withdrew from his classes due
to stress and anxiety, subsequently diagnosed as PTSD, the
reason for his withdrawal is not dispositive in this case.
Based on the foregoing, it is the conclusion of the Board
that the veteran is not entitled to retroactive Chapter 34
benefits under the Pacheco settlement and the appeal is
denied.
ORDER
Inasmuch as the Board has determined that the veteran is not
entitlement to educational assistance benefits under the
Pacheco Order, the benefit sought on appeal is denied.
GARY L. GICK
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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